G. Alex Sinha (Maurice A. Deane School of Law at Hofstra University) has posted Vengeance Under Color of Law on SSRN. Here is the abstract:
The second Trump Administration is proudly vengeful. From the top down, federal officials openly and explicitly retaliate against people, institutions, and even entire regions of the country deemed oppositional or disloyal. This description is not even debatable; the president has embraced it. Officials implement their policy of political vengefulness using both informal and formal channels. Informally, they engage in jawboning and otherwise exploit easy access to journalists and huge audiences on social media to denigrate their foes to the public and threaten adverse action. More troubling, however, are the administration’s varied and retaliatory uses of the formal levers of federal executive power. Federal officials have initiated civil and criminal investigations into perceived political opponents, withheld appropriated money from blue states specifically, and deployed large numbers of barely-trained armed agents to Democratic districts.
Many grave implications flow from this punitive orientation, but one of the gravest is that it has laid utter waste to the landscape for free speech. For over half a century, free-speech law has radiated outward from a single, core principle: the First Amendment abhors government action aimed at amplifying or suppressing private political speech based on its message. The courts have distilled a series of more discrete rights from this general principle, and enforcing these rights has never been easy. But the animating spirit of free-speech rights is quite literally anathema to political vengefulness.
The First Amendment can bear only so much dissonance between what judges have told us for decades and what the Executive Branch models now. Federal political vengefulness forces on us a difficult choice: completely revamp our understanding of free-speech law to align with the current administration’s practices, or attempt to reclaim the rights the Constitution purportedly promises us. This paper attempts the latter, and it argues that the path forward runs through a reassessment of law enforcement specifically. Policing often takes place in spaces where civilian free-speech protections are at their legal zenith, and law enforcement agents possess distinctive coercive authority. Moreover, data increasingly demonstrate that law enforcement—both at the federal and local level—has become politicized in a way that conflicts sharply with the defining neutrality norms of free-speech law. As a result, law enforcement officers are responsible for many of the most dramatic violations of free-speech rights—not just in spirit, but also in legal fact.
Yet, despite these parallels, the paper argues that federal and local law enforcement officers increasingly diverge in their approach to the First Amendment. Drawing on constitutional training materials obtained under FOIL from dozens of police training academies, this paper argues that current federal law enforcement officers and local police now adhere to two completely different models of free-speech rights. Although the policing model is clearly superior to the federal model, both are legally wrong and practically undesirable; they are calibrated to each group’s distinct and narrow legal liabilities rather than to free-speech caselaw itself. This paper thus introduces and endorses a third model of free-speech rights, and it argues for specific expansions of law enforcement liability for constitutional violations to push agencies toward accepting the new model. If courts continue to permit vengeance under color of law, we will have no choice but to radically redefine the meaning of “freedom of speech.”
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